JUDGMENT OF 28. 3. 1968 — CASE 33/67 KURRER v COUNCIL

In Case 33/67

THE COURT (Second Chamber) composed of: W. Strauß, President of Chamber, A. Trabucchi and P. Pescatore (Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — The substance of the case

IV — Procedure

Grounds of judgment

Consultation with the Promotions Committee and with the Joint Committee

Recruitment into Grade A4

Costs

I —. Facts

II —. Conclusions of the parties

(a). declare the application admissible;

(b). annul the following measures:

(c). order the defendant to pay the costs of the proceedings including those of the applicant.

(a). dismiss the application as unfounded;

(b). order the applicant to pay the costs, save those which must be borne by the defendant by virtue of Articles 70 and 95(1) of the Rules of Procedure.

III —. Submissions and arguments of the parties

A —. Admissibility

B —. The substance of the case

1. The applicant remarks that the Councils of the European Communities, by decision of 7 October 1963, adopted, pursuant to the second subparagraph of Article 5(4) of the Staff Regulations of Officials, only a very general definition of the duties and powers attaching to posts in the Secretariat-General, in particular as regards Grades A4 and A5, and they did not draw up any detailed list of posts, properly so called, containing a more precise definition of the various posts.

2. The applicant says that, since the definition of the post opened to competition does not follow the general table of definitions of duties, it must at least be based on a legal measure of the Council. Only the Council, in its capacity as an institution, has the power, in the absence of an express authorization conferred on the Secretary General for the purpose, to draw up a particular definition of duties which departs from and narrows the general definition. In the present case, however, this was done merely by the Secretary General's decision.

3. The applicant states that the disputed vacancy notice, by reason of the apparently mandatory nature of the definition of duties contained in it, stands in the way of a correct application of Article 1(1) of Annex III to the Staff Regulations, in that it diminishes the importance of the consultation with the Joint Committee. The same is true of the Promotions Committee responsible, under Article 29(1) of the Staff Regulations, for considering, before announcing a competition, whether the post can be filled by promotion within the institution.

4. The applicant complains that the purpose of the contested vacancy notice was to reserve the post in question for a Netherlands national.

5. According to the applicant the vacancy notice in question infringes Article 5(3) of the Staff Regulations, under which identical conditions of recruitment and service career shall apply to all officials belonging to the same category, in that the definition of duties appearing in it does not correspond to the definition of the duties of the other officials of the Legal Department of the Council.

6. The applicant maintains that the contested vacancy notice infringes Article 5 of the Staff Regulations in that it provides for classification in Grade A4, that is to say, the higher grade in a career bracket covering two grades. Even if the necessity of resorting to the competition procedure for the recruitment in question were to be admitted, there were no objective factors preventing a classification in Grade A5.

7. According to the applicant the disputed vacancy notice creates the pre-conditions for an infringement of Article 31 of the Staff Regulations, under paragraph (1) of which officials in Category A shall be appointed to the starting grade of their category. In the present case the appointing authority is relying on the exceptions which it may make under paragraph (2) without showing that such an exception is justified by the requirements of the service.

8. Taking the view that the vacancy notice is merely the initiation of a procedure, the applicant asks the Court to annul all the measures already issued or which may be issued in the context of that procedure, including any appointment.

IV —. Procedure

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Protocols on the Statute of the Court of Justice annexed to the Treaties establishing the ECSC, the EEC and the EAEC; Having regard to the Staff Regulations of Officials of the European Communities, especially Articles 2, 4, 5, 9, 27, 29, 31 and 91 and also Annexes I, II and III thereto; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT (Second Chamber) hereby:

1 Dismisses Application 33/67;

2 Orders the parries to bear their own costs.